United States – Arbitration and Dispute Resolution – Podcast

In this episode of “The Trial Lawyer’s Handbook” podcast series, trial lawyer Dan Petitdiscusses the nuanced art of redirected review, emphasizing its strategic use to mitigate harm and refocus the jury’s attention. It highlights common pitfalls, including unrealistic expectations of lawyers, which can lead to wasting the opportunity for a limited but effective reorientation. Mr. Small advises careful planning and strategy rather than emotionally driven responses, since the process will vary significantly from witness to witness. Additionally, he emphasizes the need for discipline and focus, advising against attempting to cover every point raised during cross-examination to ensure that key arguments emerge.

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Mr. Small is also the author of the new American Bar Association (ABA) book, Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.

Podcast Transcription

Narrator: You’re listening to The Trial Lawyers Handbook, a courtroom preparation podcast series presented by Holland & Knight. This series is hosted by trial lawyer Dan Small and is based on a long-running series of articles he co-authored with United States District Court Judge Dennis Saylor of Massachusetts Lawyers Weekly. Listeners to this series will gain a new perspective on how attorneys can approach various trial preparation issues and prepare themselves for success in and out of the courtroom.

Dan Petit: Done well, re-examination can help repair or limit some of the damage done during cross-examination, explain new issues raised, and refocus the jury on what you believe is important. However, it has important limitations. Redirecting will not bring a destroyed witness back from the dead, nor will it cause the other party’s points to disappear. Lawyers often expect too much from repurposing and try to do too much, only to lose what could have been a limited but more positive effect. Worse yet, their reorientation may be motivated more by anger or frustration than by a real strategy. So, be careful. Obviously, the nature and purpose of the redirection will vary considerably from one witness to another. However, there are some fundamental points worth considering first.

Plan ahead. This may be a surprising thing to say about something that is meant to be a simple rebuttal. You may not know everything your adversary will do with your witness on the cross, but come on. Chances are you have a good idea. Don’t just hope that an effective redirect will magically appear from the yellow pad you’ve been taking notes on. Like any good fighter, plan ahead. If your opponent does X, how will you react? If he or she does O, how will you handle it? Think about several likely approaches in advance. Then adapt them to what is actually happening.

By the way, planning ahead applies to both parties. Be aware during cross-examination that your opponent will have a redirection and do not help them make it effective. The American Bar Association just published my book, Put to the Test: Stories and Lessons from a Life Put to the Test. And in one of the articles, I talk about a case that I prosecuted in which a relatively minor witness had a very brief direct examination, and then the defense attorney decided to try to make his full case. thesis on him through this witness. He was not the right witness. It wasn’t the right time. It wasn’t the right place. But by the time they finished, the court was so bored and so frustrated that it allowed me to go absolutely crazy. During the re-examination, I was in charge. I was doing all sorts of things, and the other side, the defense, objected, and the court basically said, “You opened the door, you have to eat everything that comes out.” » And I ended up with a redirection that was longer and much more effective than my direct examination had been.

Number two: Do not direct the redirect.Oddly, almost all lawyers, almost all witnesses, almost all the time, are in reorientation. It’s become so prevalent that someone has to teach that it’s okay. It’s not. Some guidance is necessary to direct the witness to particular issues raised during cross-examination. Otherwise, it’s inappropriate. Do not do it.

Number three: Don’t lose momentum when redirecting. If there is an objection to lead, don’t let your opponent lead on the redirect. Just as mysteriously, almost no one objects to the redirection. Maybe the lawyers are exhausted from the cross or they aren’t listening closely enough. If your opponent leads inappropriately, object.

Number four: Keep the redirection in the cross frame. Most judges limit redirection to issues raised during cross-examination. Judges have broad discretion in this matter. So know your judge, know your case, and limit your redirection accordingly. If your opponent’s question is outside the scope of cross country, object.

Number five: Don’t try to touch everything.It is generally impossible to provide an effective reorientation that addresses every point raised during cross-examination. Falling while trying to hit everything will dilute the effect of your important points. After all, if everything is important, nothing is important. Anticipate cross-examination and raise questions directly when possible, then save redirection for the important things.

Number six: If you need to rehabilitate, do it right. Sometimes your witness says something unnecessary or confusing during a cross-talk that can be explained or fixed in another way during redirection. If you need to re-educate your witness, take the time to do it properly. Do not rush. Don’t give the impression that you can’t wait for the witness to leave the stand. Take your time.

Number seven: Don’t be afraid to be short or even pass. Break. Breathe deeply. Much of the review exams are repetitive, disorganized, and, worst of all, unnecessary. Jurors’ patience is low. Before you get up, stop and think. Has my opponent really accomplished anything? What has it accomplished and what can I do effectively? Keep it brief and consider not doing it at all. Sometimes the most effective redirection is to quietly shrug your shoulders and say, “No questions, your honor.”

Effective redirection can make a difference, but it’s important to lower your expectations. Plan ahead. Do it correctly and don’t try to do too much.

Narrator: Thank you for listening to The Trial Lawyers Handbook, a courtroom preparation podcast series presented by Holland & Knight. For more information about courtroom preparation, please email [email protected] or visit hklaw.com/Daniel-Small.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your specific situation.